O’BRIEN: Common Sense Prevails With Supreme Court Denying Easy Asylum For Migrants


Matt O'Brien Contributor
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The Supreme Court has issued an opinion allowing enforcement of the Trump administration’s new rule barring asylum for migrants who have crossed through other countries on their way to the United States. That rule had briefly been subject to a nationwide injunction issued by a federal district court in California in response to legal challenges filed by the American Civil Liberties Union (ACLU) and other pro-alien groups.

While those lawsuits will continue to wind their way through the courts, the federal government may now begin turning away, “aliens who enter or attempt to enter the United States across the southern land border after failing to apply for protection from persecution or torture while in a third country through which they transited en route to the United States.”

In a typical display of hyperbole, the high court’s decision was immediately characterized by the mainstream media as “dangerous” and as a “devastating blow to the asylum system.” These claims are nonsense.

The new rule simply implements a concept — known as “safe third country” or “country of first asylum” — that has been a part of international law for decades. Indeed, the United Nations High Commissioner for Refugees has acknowledged the validity of safe third country policies, “whose lawfulness is presumed on the grounds that protection has already been found or can be found elsewhere.”

The best known example of a safe third country policy is the European Union’s Dublin Regulation. However, there is nothing in in domestic or international law that prohibits a nation from implementing the safe third country concept unilaterally, through policy or legislation.

Safe third country rules are designed to discourage “asylum shopping,” the attempt to obtain asylum from a specific nation, after passing through several other safe countries without seeking their protection. Experience, gained in the aftermath of two world wars, a Cold War, and the political upheaval connected with each indicates that people who truly fear persecution, and aren’t just looking for better living conditions, quickly ask for asylum in the first safe country they can reach.

Therefore, pursuant to international law, people who are being persecuted by their home government, and are genuinely in danger, can request protection from another country. They can’t, however, refuse the protection of the nearest safe country in order to take up residence in their state of preference.

And it was in an attempt to preserve the integrity of the asylum system, even in the face of asylum shoppers and unanticipated waves of migrants, that Congress granted the secretary of Homeland Security broad authority to establish, by regulation, “additional limitations and conditions under which an alien shall be ineligible for asylum” in Section 208(b)(2)(C) of the Immigration and Nationality Act (INA).

Our asylum system is intended to provide refuge to people who are being persecuted, by the government of their native country, on account of race, religion, nationality, political opinion or membership in a particular social group. It was never meant to be a safety-valve for people fleeing their homelands’ bad fiscal policies. And the bulk of the current wave of migrants from Central America’s Northern Triangle are economic migrants seeking better jobs in the United States.

Accordingly, the Supreme Court’s decision is both a victory for the Trump administration and a vindication of its approach to immigration enforcement. Far from being either radical or outrageous, safe third country policies put Mexico, Central America and South America on an equal footing with Canada, with which the U.S. already has a safe third country agreement. They also preserve the integrity of our immigration system, ensuring that our asylum laws are not exploited by people who have no legitimate claim to protection.

In short, the Trump administration hasn’t sent a message that migrants aren’t welcome in the United States, as its critics claim. Rather it has sent a clear message that America is a nation based on the rule of law and that those wishing to join our unique political and economic community are expected to do so in accordance with the rules and regulations that we, as a sovereign nation, are entitled to set.

More importantly, however, the Supreme Court’s decision represents a victory for common sense and judicial restraint, both of which seem to be in very short supply in many of our federal district courts. One can only hope that the lower federal courts will get the message and begin ruling accordingly.

Matt O’Brien is director of research at the Federation for American Immigration Reform (FAIR), a nonprofit group advocating for legal immigration.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller